Fair Report Privilege

The fair report privilege may protect you from liability -- even if
you publish something that is defamatory -- if you relied upon a
official public document or statement by a public official for the
false information, made clear that the document or statement was your
source, and fairly and accurately used the source. This privilege
enables you to freely report, for example, about what people say during
a council meeting or from the witness stand during a trial or to quote
from public records.

The fair report privilege's historic rationale has been to
encourage public scrutiny of governmental activities through fair and
accurate reporting of governmental proceedings. The defense allows you
to report on government activity without bearing the overwhelming
burden of first proving the truth of everything said in government
documents and proceedings.

Keep in mind that not all states recognize the fair report privilege, so check your state's defamation section to confirm that you are covered. In those states that do recognize the privilege, it will generally apply where:

Your source is an official public document or statement by a public official on a matter of public concern;

You properly attribute the information to that source; and

You fairly and accurately portray the information from the document or statement.

Sources Covered By the Fair Report Privilege

While each state can decide for itself what sources are covered
by the fair report privilege, it generally applies to publicly
available government records, official government reports, and
statements made by government officials. Interim and unfinished
government records and reports generally are not covered.

Examples where the fair report privilege would probably apply include:

Statements made by a judge in a trial

A speech made by a city council member during a council meeting

Testimony during a trial

Facts recorded in a final police report

Analysis reported in an Environmental Protection Agency survey

The privilege would probably not apply to:

Statements made by an arresting officer about the facts of the case, where those facts are not recorded in the police report

Gossip overheard on the courthouse steps

Offhand remarks made by a government official in a private setting

Statements made in a draft government report

Many sources may fall into gray areas. In general, the privilege is
more likely to apply if the statement or fact comes from a public
figure acting in his official capacity or a final, public report. It is
less likely to apply where the figure is more private or is acting
outside of his official scope of duties, or where the report is more
preliminary or is inaccessible to the public.

Further, each state defines the scope of the privilege
differently. For example, some states extend the privilege to more
private settings such as a meeting of a corporation's share holders.
Please consult your state's defamation section for specifics.

Ensuring That Your Use of Sources is "Fair and Accurate"

Whether the statement is true or not does not matter for
purposes of the fair report privilege: even if the witness whose
testimony you relied on is later convicted of perjury, the privilege
still applies if you accurately reported and attributed the testimony
he provided in the first place. It would apply even if you had
knowledge that the witness was lying in his testimony. The purpose of
the privilege is to protect statements or facts from public sources
that are newsworthy in and of themselves, regardless of their veracity.

Generally, courts will follow rules of accuracy that echo the
"gist" and "sting" rule developed to test for "substantial truth." See
the section on Substantial Truth for more information.

But what is critical is that you accurately report (or abridge
fairly) the information: reporting that the witness said the defendant
deliberately burned down the house when the witness had only said that
the defendant accidentally dropped a match would not be protected by
the fair report privilege. Be particularly careful when you are
"translating" complex legalese. Further, be careful not to use
quotations selectively. For example, if a witness in her testimony said
she saw the defendant rob the store, then corrects herself thirty
minutes later in the same testimony to indicate that she had really not
seen the robbery, quoting only the first part would likely fall outside
the fair report privilege.

In general, courts will look at whether you acted in "good
faith," looking far more favorably at an honest mistake that was made
in condensing a long, complex statement or document than at selective
quotation that may be perceived as maliciously intending to portray the
subject in the least favorable light possible. Not every fact must be
included, but many courts will find the privilege lost if the overall
reporting is too one-sided.

Where the court draws the line on fairness and accuracy varies by jurisdiction. Consult your state guide for specifics.

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Disclaimer

Information in this guide is based on general principles of law and is intended for information purposes only; we make no claim as to the comprehensiveness or accuracy of the information. It is not offered for the purpose of providing individualized legal advice. Use of this guide does not create an attorney-client or any other relationship between the user and the Digital Media Law Project or the Berkman Center for Internet & Society.

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